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Council takes no action on Planning Commission

Monday, April 30, 2018 by Jo Clifton

Faced with no easy or painless options, City Council members decided late Thursday night to put off considering how to get out of their predicament of a development-heavy Planning Commission and a desire to get through the rewrite of the Land Development Code, CodeNEXT, without further delay.

Anti-CodeNEXT advocates who oppose the current makeup of the commission have pointed out that seven of the commission’s 13 members are directly or indirectly connected with land development or real estate, in violation of a 1994 amendment to the city charter, which prohibits more than one-third of the members from working in real estate-related fields. (At one point, the leader of a group of opposing CodeNEXT, Fred Lewis, counted an eighth member, Assistant County Attorney Tom Nuckols, but Lewis has since decided that Nuckols should not be put in that category since he has a government job.)

The vote to postpone to May 10 was 6-4, with Council Member Ellen Troxclair on family leave. Mayor Steve Adler and Council members Ann Kitchen, Delia Garza, Greg Casar, Pio Renteria and Jimmy Flannigan voted for the postponement.

Council had three options in front of it for removing three of the seven members, but all three options would have continued the service of all members until June 1, by which time the commission is expected to have made its recommendations about CodeNEXT. One of the options would have interpreted the charter language narrowly so as to allow architects and engineers to continue their service.

That is definitely not what CodeNEXT opponents want. Lewis wrote an op-ed piece for the Austin American-Statesman in which he urged the public to oppose the resolutions proposed by staff to deal with the problem. And attorney Bill Bunch of the Save Our Springs Alliance scolded Council on Thursday, saying, “You need to ask your people to step down from the Planning Commission because nobody’s disputing” the fact that seven members are working in development-related fields in violation of the charter.

He added, “This isn’t Trump land in Austin. And people understand this. There is not one voter in 20 or 30 who thinks that real estate developers are underrepresented at City Hall and need to have this special protection so they can dominate the Planning Commission.”

Speaking on behalf of the pro-density group AURA, Eric Goff said the language in the city charter is “so broad as to be meaningless. Everyone in Austin is directly or indirectly connected to land development and real estate because everyone lives somewhere. And the reason that you have people come to these meetings to stay until 11 o’clock or one o’clock or two o’clock is because everyone cares about real estate in the city as the primary thing you deal with.” He then quipped that the commission should have a requirement that two-thirds be renters, or that two-thirds be homeless.

Renteria brought up another problem that makes Council’s decision about removing commissioners even trickier. He asked Assistant City Attorney Erika López about a provision in state law that gives members of the Planning Commission a property interest in holding their positions for two years, so that City Councils can’t remove commissioners on a whim.

Renteria said that “When the Council got elected (in 2014) everybody picked their own commissioner. And no one knew who else was picking what at that time, so we ended up with, I guess, seven members” in real estate-related fields.

What no one mentioned was that previous Councils had avoided the problem by conferring with one another in private, or having their aides talk privately, about who they were appointing. That all ended when the previous Council got in trouble for violating the state’s open meetings law by meeting in small groups that overlapped.

In addition, under the seven-member Council, each member appointed one commissioner and there were two consensus appointments, which meant that they had to confer about at least two of the appointments. The consensus appointments disappeared with single-member districts, with the mayor getting three appointments and each Council member getting one.

Council Member Leslie Pool then asked City Attorney Anne Morgan which law they should follow: “Wouldn’t the Council’s violation of the city charter have primacy over a two-year term?”

But Morgan wasn’t willing to give an easy answer. “Council members, I think the question has to do with what y’all are interpreting for the charter, and I think the debate that you’re having about who qualifies and who doesn’t is one that you are having right now. And so you want to follow the charter in all respects,” she said.

So, for Pool that meant, “We need to move in the direction that our constituents and our residents are here tonight telling us to do, which is fix that problem” of having too many commissioners working in real estate-related fields.

Council Member Alison Alter argued against the postponement, saying, “Just because (the law) says you serve two-year terms, if you’re ineligible to be on the board in the first place you have no property right to that term.”

Alter also proposed an amendment to choose commissioners who would be removed by drawing straws.

Flannigan said little during the debate, but after the vote to postpone, he said, “Because I have come to appreciate that silence is sometimes interpreted as acceptance, I want to daylight for staff that … I wouldn’t support that method of drawing straws. I don’t think it would make sense. It would be the same thing as drawing names out a hat to pick the mayor pro tem. So I don’t think that’s anything we’d want to be doing, and if staff wants to put together options that comply with other removal procedures or options that are defined in other state laws about how one might do removal procedures, then I think that would be more amenable to me.”

The commissioners who are in jeopardy of losing their appointments include the chair, Stephen Oliver, the vice chair, Fayez Kazi, and James Schissler, Greg Anderson, James Shieh, Trinity White and Karen McGraw. Oliver, Shieh, McGraw and White are architects. Kazi and Schissler are engineers. Anderson works for the nonprofit Habitat for Humanity, which builds housing for low-income residents.

This story has been corrected to reflect that under the at-large Council system there were two consensus appointments, not three. Video still courtesy of ATXN.

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